(photo: plastic lemonade)

First, Sen. Richard Shelby put a blanket hold on all executive branch nominees to extort the executive branch into rigging procurement to guarantee that the company he favored won a bid on a defense contract. Oh, and he wanted the FBI to build a crime lab in his state, too.

And now Sen. Lindsey Graham is copycatting, placing a hold on the closing of Gitmo hostage to extort the Department of Justice into not having a civilian trial for Khalid Sheikh Mohammed. And Graham's not being subtle about it. In a well-researched piece for The New Yorker, Jane Mayer breaks some amazing scoops:

Rahm had a good relationship with Graham, and believed Graham when he said that if you don't prosecute these people in military commissions I won't support the closing of Guantnamo. . . Rahm said, If we don't have Graham, we can't close Guantnamo, and it's on Eric!'

[snip]

Graham told [Mayer], It was a nonstarter for me. There's a place for the courts, but not for the mastermind of 9/11. He said, On balance, I think it would be better to close Guantnamo, but it would be better to keep it open than to give these guys civilian trials. Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials.

Okay, Senators Graham and Shelby? This is the U.S. Senate, not middle school. This blackmail thing? Its not like, Oh, the cool kids are wearing Hello Kitty wristwatches and you need to follow the fad.

There is zero logical nexus between whether or not to close Gitmo and whether or not to have civilian trials, so the only reason for making the kind of statement quoted above, is quid pro quo. While I'm not suggesting that this is a Hobbs Act violation (read the link, trust me), it certainly smells just as bad.

Kate Martin, the Center for National Security Studies director, warns, We can't have a situation where political pressure forces the federal government to forgo criminal prosecution. That would mean the system is fundamentally broken.

Message for Rahm, from Marcy Wheeler:

Remind me. Didn't Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

Really, the White House needs to BACK OFF and let the Department of Justice and the federal courts do their job. And a bunch of non-lawyers with ZERO expertise in this area should NOT be part of the decision making process, much less driving that process. Hasn't Rahm done enough damage to the President with his mishandling of the healthcare bill? Why do you want him to screw up something he knows even less about?

When Jammie Thomas (now Thomas-Rasset) became the first alleged P2P file-swapper to take her case all the way to trial and verdict, no one suspected that she would actually have three trials and verdicts, but that's the case today, as the RIAA rejected a federal judge's decision to slash Thomas-Rasset's damage award. Instead, we're headed to a truncated third trial on the issue of damages.

The recording industry also made it clear this week that both Thomas-Rasset and Joel Tenenbaum (the second P2P defendant to go to trial and verdict) are, in its view, quite terrible people: lying, deceiving, irresponsible, and unreasonable. And the industry can't understand why they're both fighting on.

The week before Thanksgiving, I attended an unusual symposium sponsored by the University of Denver Law Review entitled Cyber Civil Rights: New Challenges for Civil Rights and Civil Liberties in our Networked Age. The symposium covered standard Cyberlaw topics, but the raison d'tre was University of Maryland law professor Danielle Citron's two recent articles on online harassment of women: "Law's Expressive Value in Combating Cyber Gender Harassment" (Michigan Law Review) and "Cyber Civil Rights" (Boston University Law Review). It is unusual for a law school to celebrate another school's professor and her research, especially when the professor is fairly junior. Nevertheless, Danielle's participation brought together academics from both the Cyberlaw and civil rights communities, which provided a rare and interesting mix of folks..

First Panel

Danielle Citron started off by recapping her two papers. Online participation, such as blogging, is essential to professional standing, and employers are reviewing online profiles of prospective employees as part of their hiring considerations. However, women are being targeted for abuse online. These attacks are harming women by changing their online and offline activities, reducing their job opportunities, and causing women to change their gender representations online. Further, folks are trivializing these problems. Women are underreporting the attacks, and law enforcement only intervenes when there are offline harms. New laws can serve an expressive function to communicate that online attacks against women are socially unacceptable. The new laws can validate women's feelings that they have been harmed and encourage law enforcement to pursue more cases.

Commenting on the papers, Robert Kaczorowski of Fordham Law (and Danielle's stepdad) made an extended analogy between the Ku Klux Klan and cybermobs.

Wendy Seltzer asked if we could deemphasize the effect of words rather than prohibit them. Danielle responded that we don't know how seriously to take any particular threat.

An audience member asked if is there a difference between mobs and individual actors who are just taking advantage of being anonymous. Danielle answered that groups can become more extreme online. I think this point deserves more exploration: a series of uncoordinated individual decisions to pile on to an attack can look like a coordinated attack to the victim. This is part of why I thought the KKK references were puzzlingKKK activities are clearly coordinated, while online attacks against women can succeed without any coordination or ongoing connection between the attackers.

Paul Ohm argued that that legal solutions are better for cyber civil rights problems than technological solutions. Paul discussed what he labeled Felten's Third Law. (He doesn't know of two earlier laws named for Ed Felten; he just assumes they exist given Ed's impressive and influential oeuvre). As articulated by Paul, Felten's Third Law is that in Cyberlaw conflicts, lawyers love technical solutions and technologists love legal solutions. In other words, we love the solution we don't know because we assume it has to be better than the one we do. As both a law professor and technologist, Paul picks law over technology for these problems.

Paul categorically rejects any technical solution that would create a fully identified Internet. For example, we should not mandate server log retention because we know the logs will be co-opted to regulate other forms of unwanted content, not just online harassment.

Wendy Seltzer discussed the unintended consequences of legal intervention. For example, mandatory Internet filtering in school libraries hasn't stopped kids from bypassing the filters, but it has facilitated a marketplace for improving filtering technologies that has benefited repressive regimes. Another example: anti-circumvention technology fails to restrict copying but has reduced innovation around DRMed content. Wendy also noted how norms can help curb abuses. For example, while there are online cesspools, she praised Wikipedia's evolving guidelines for living people's biographies.

In response, Danielle admitted that her solutions need to be more surgical. She said she might consider moving from a notice-and-takedown model to a notice-and-preserve model for intermediaries.

Second Panel

This panel was composed of three women academics from the civil rights community, so it was a noticeable shift from the typical Cyberlaw academic discussion.

Mary Anne Franks is a University of Chicago Bigelow Fellow and soon-to-be full-time law professor. She expresses our collective disappointment that cyberspace isn't a utopia that allows people to escape offline discrimination and harassment. She laments that women can lose control of their identities online, such as when someone creates a fake online profile in their names.

She then addressed how cyberspace is unique/special/different with respect to gender harassment. Many commentators try to duck cyberspace exceptionalism, so it was refreshing to see her tackle the issue squarely. Existing offline discrimination/harassment laws assume interactions between repeat players at work and school; online harassment can be divorced totally from any existing social networks. However, because the online activities still harm targeted individuals at work and school, we should treat the harms the same. Offline, there are switching costs to changing jobs or school; online, search engines' consolidation of results for search on a person's name creates a different type of switching cost. In terms of supervisory power, she thinks web operators have analogous control to employers or school administrators. Thus, when web operators receive notice of online harassment, they should have a duty to do something about it. Offline, employers can develop a variety of responses and policies to combat workplace harassment. Web operators should have similar latitude; for example, they can delete offending posts or suspend/ban accounts.

Helen Norton, a University of Colorado law professor, did not share Danielle's optimism (expressed in her first article) that existing discrimination laws can curb online harassment. Instead, Helen thinks a new civil rights statute is needed, but she might limit its remedies to exclude money damages. Helen is pessimistic that there will be regulation any time soon, noting that it can take years to enact civil rights legislation. Helen would also like to see more precise definitions of the exact harms that women are experiencing only online.

Nancy Ehrenreich, a Denver University law professor, began her talk by saying that we should not overstate the Internet's benefits. She then clarified that we should not assume that disadvantaged folks can overcome barriers online. For example, we impose cultural categories on people in every interaction, so even if people try to mask their identity online, they can't really escape. She wondered why we aren't talking about an anti-discrimination law for the web. Her concern is that discrimination denies individuals access to the Internet.

In Q&A, Paul Ohm observed that civil rights scholars often invoke free speech as the countervailing concern to their desired regulations, but Cyberlaw scholars are often more interested in other generative effects of the Internet, such as new business models, new labor models and new modes of production.

Panel 3

James Grimmelmann (see his slides) started with the Skanks in NYC case. In that case, the defendant criticized someone else in her social network on a blog, calling the plaintiff (among other unflattering things) a skank. The plaintiff sued to obtain the blogger's identity. After a successful unmasking, the plaintiff dropped the lawsuit, having successfully publicly shamed the blogger.

James hypothesized that this unmasking and shaming was an appropriate remedythe blogger got shamed (like an eye for an eye), and unmasking is a better outcome than other legal remedies like damage suits. James then posited a thought exercise that provided plaintiffs with an expedited unmasking procedure if they drop any damages claim. This would have a number of benefits. Unmasking curbs online harassment is especially effective at busting online mobs. Also, an unmasking remedy avoids messy debates over the First Amendment's scope, and it may be more desirable than trying to hold online providers liable.

Having advanced his own strawman, James then cut it down. In some cases, defamation remedies may be more desirable, and plaintiffs may not know that until they learn the putative wrongdoer's identity. In other cases, plaintiffs who just want unmasking would appreciate a lower legal hurdle. Also, we provide legal protection for anonymity for good reasons.

James' lessons from the thought exercise: we should consider ways to decouple an unmasking remedy from litigation. At the same time, we need to protect defendants from pretextual unmasking; in some cases, retaliation is a big concern, and we should incorporate this concern into the unmasking decision.

From Chris Wolf's talk (see his full remarks), the most interesting thing I learned is that 18 states have laws banning wearing masks in public, enacted to suppress KKK activities. This was the second speaker's KKK reference of the day, and it made me wonder if we were experiencing some variation of Godwin's Law.

Panel 4

Viva Moffat observed that secondary liability issues generate the most heat in online harassment discussions. She expressed concern that imposing legal duties on third parties may not help law's norm-shaping effect, and it's not appropriate to impose liability just because the provider has deeper pockets or the direct actor can't be found. She also suggested that imposing liability on third parties creates a greater risk of collateral damage than direct liability. [Note: I would like to know more about this last assertion. I suspect we cannot make a utilitarian calculation a priori]. As a result, she favors focusing more efforts on sharpening direct liability.

Ed Felten talked about identifying and anonymizing online activity. He explained the usual sequence of events in chasing bad online content:

log file => IP address => identity => justice

But the IP address => identity step breaks down when users use an anonymizing proxy or the user's network uses network address translation (used by home wireless routers or in coffee shops) and all connected devices' requests share a single IP address. He said that a majority of Internet connections use NAT.

Because IP address tracebacks can dead-end at the intermediary, an IP address can reveal too little information. However, even when users aren't investigatory targets, IP addresses can reveal too much information, such as geolocation. This paradoxIP addresses simultaneously reveal both too much and too little informationreflects that the IP address system was built for routing, not identification. So could we design a better authenticating technology?

He then conducted a semi-realistic thought experiment of a new technological tag that could be used instead of IP addresses. This tag could have the following attributes:

* can be placed by any intermediary
* conveys no information about the sender unless unwrapped by the intermediary (presumably for good legal cause)
* unwrapping the tag yields the best identity information the intermediary has
* the tag's use is voluntary as a technical matter
* the tag is removable as a technical matter

I then batted clean-up. A summary of my remarks:

Today's conversation has revisited long-standing Cyberlaw issues, such as:

* anonymity v. accountability, and who should be responsible for online content and actions
* cyberspace as a physical place. See, e.g., Noah v. AOL (an online discrimination case), National Federation of the Blind v. Target (also an online discrimination case) and Estavillo v. Sony
* cyberspace exceptionalism and cyberspace utopianism (on the latter point, see my article on search engine utopianism)
* when is the optimal time to regulate rapidly evolving technology? Early, when the technology is still in its infancy, or later, when market forces and new technological evolutions may have cured the early problems?

Danielle's articles convinced me that women are experiencing serious harms online that menincluding mecould easily trivialize. Danielle's articles also convinced me that online harassment has strong parallels to the 1970s legal evolution of workplace harassment doctrines, where a big part of the battle was to get people to take the harms seriously.

While I find a lot of descriptive value in Danielle's work, the normative implications are not as clear. As usual with attempts to regulate rapidly evolving technology, there are many important but overwhelmingly hard definitional challenges, such as who is an intermediary, what are online mobs and what constitutes online harassment. For example, I do not think the Skanks in NYC incident is an online harassment case or an attack, but James Grimmelmann's talk assumed those characterizations.

While we can debate what should be the right level of regulatory intervention, we should not overlook that Congress already enacted a law squarely governing intermediary liability for online harassment: 47 USC 230. The angst that prompted this conferencebad behavior onlineis the logical consequences of 230's broad immunity. The statute enables websites to adopt policies that they will not police user content or retain server logs of user activity. These choices aren't a surprise or a per se abuse of the immunity; instead, they are the unavoidable implications of Congress' action.

We might question Congress' wisdom in adopting 230, but we should not diminish its potential importance to the Internet as we know it. [In Q&A, Chris Wolf asked about the comparative experience in countries that don't have such broad immunity. In those countries, we know that websites take down user content much more freely, and I believe that the most interesting UGC innovations are all taking place here in the US, not countries with more restrictive UGC liability.] I can, at most, only prove correlation and not causation, but I believe 230 is one of the main causal reasons why the Internet has succeeded so well.

When I speak around the country about 230, I often encounter folks who generally accept 230's immunity scope but want just one new exception, i.e., their pet topic. If everyone got their just one exception, the law would be eviscerated. (I said it would be Swiss-cheesed to death; maybe I should have said it would be overcome by a thousand duck bites). I'm not rejecting new exceptions categorically (they should be each considered on their own merits), but in aggregate 230's immunization benefits are actually quite precarious. I believe 230 works precisely because of its strength and simplicity, so adding more exceptions could significantly reduce its efficacy.

I concluded my remarks by observing that online harassment is a subspecies of bullying and incivil behavior in our society. While we can and should work to curb online harassment, I am more interested in addressing bullying and incivility in all its forms, wherever it takes place.

In this regard, I have been impressed by how my son's school is proactively addressing bullying. See more about this effort, called Project Cornerstone. The school is teaching kids not to bully or to tolerate being bullied, and the project gives bullied kids tools to go on the offensive against bullies. There's no guarantee that anti-bullying programs will work in the short or long run, but I remain hopeful that online harassment today partially reflects that many current Internet users never got any anti-bullying education. Perhaps, then, online harassment issues will naturally abate (without any regulatory intervention) as new generation of Internet users, better educated about bullying, come onto the Internet.

Following my remarks, we had more Q&A.

Paul Ohm Q: Some cyber folks argue against secondary liability because they believe that a victim can pursue a direct action, but Ed's talk suggests that user anonymity will continue to be possible.

Mary Anne Franks: civil rights isn't about individual claims because victims have to bear too high a burden to pursue claims. Instead, civil rights are about changing large-scale social norms. The goal is to achieve anti-discrimination by any means necessary. Thus, civil rights scholars have already discussed and concluded that it's appropriate to impose liability on intermediaries like employers and schools.

Danielle: intermediaries are the lowest cost avoiders.

James Grimmelmann: no, the harassers are the lowest cost avoiders. Civil rights folks would get more support from the Cyberlaw crowd if they focused their regulatory desires towards intermediaries who are in active concert with the bad actors.

Danielle's Wrap-Up

We all agree that:

* education can make a big difference
* online communities need to self-police
* there are numerous limits to using the law as a solution, including that lawsuits don't make sense and 230's immunity.

We don't agree on what to do next. There are First Amendment limits, and technology doesn't offer any panaceas.

Beverly Stayart searched her own name and didn't like the results. She got links to pornographic websites, online pharmacies promoting sexual dysfunction drugs, and an adult-oriented online dating service. She sued Yahoo! and other defendants, including the operator of AdultFriendFinder, for false endorsement under the Lanham Act and state-law privacy violations. The court dismissed the Lanham Act claim and surrendered jurisdiction over the state law claims.

Stayart lives in Wisconsin and was previously employed by several major financial institutions in Chicago, attaining the position of Vice President. She's involved in animal protection and genealogy research throughout the world. This includes an internet presence; her periodic posts on one genealogical website have generated almost 17,000 hits during the past three years. (Okay, I'm sorry, but: on the internet as a whole, that's tiny. My stats look more impressive than thatif you've never seen any others.) And two of her poems appear on two Danish websites (they support the preservation of baby seals).

Stayart alleged that she was the only Beverly/Bev Stayart on the internet, and that she had never engaged in a promiscuous lifestyle, or other overt sexual activities, which are repugnant to her and her community. She alleged that her name had commercial value because of her humanitarian endeavors, positive and wholesome image, and the popularity of her scholarly posts on the Internet. The search engine defendants, she alleged, knowingly used her name on false snippets in results by (1) repeatedly linking Plaintiff to the advertising of Cialis by an online pharmacy; (2) repeatedly linking Plaintiff to six separate websites playing pornographic videos containing computer spy ware; and (3) repeatedly linking Plaintiff to a website captioned Free Streaming Porn--HOTTEST DAILY PORN' displaying 27 hardcore pornographic photos. She asked Yahoo! to stop linking her name to these search results. Yahoo! replied: We do not aim to judge web content for appropriateness or censor materials that we find offensive or inappropriate. Instead, we present information as it is reflected on the Web, allowing you to draw your own informed conclusions about what you see.

Stayart also alleged that Various (which operates AdultFriendFinder) used her name on a website advertising its service. She typed her name into altavista.com and got, among the results, jewellery-makin-doorway.orge.pl/bev-stayart.html. This went to an Under Construction site that stated Meet AdultFriendFinder members near Janesville [Wisconsin]-- Over 20 Million Members and displayed five graphic images of fully or partially nude women, accompanied by the age, nickname and city of residence of the women.

Under Iqbal, though a court must accept all well-pleaded facts as true, the claim must still have facial plausibility. And a plaintiff can plead herself out of court, which was what the court determined had occurred here.

False endorsement means that consumers are likely to be misled about a person's sponsorship or approval of a product or service.

In order to have prudential standing under the Lanham Act, Stayart needed to allege at least an existing intent to commercialize her identity. This she didn't do. Though she alleged that her name has commercial value, her complaint is really about distasteful associations. That emotional desire to prevent others from using her name doesn't create Lanham Act standing. Her correspondence with Yahoo!, attached to the complaint, further indicates that her concerns are with privacy and reputation, defamation and demeaning associations. But the Lanham Act does not create a false light tort claim, absent commercialization.

Stayart relied on Doe v. Friendfinder, which refused to dismiss a false endorsement claim against AdultFriendFinder. But Doe didn't address prudential standing in its decision.

The court went on to reach an independent ground for dismissal, lack of likely confusion as a matter of law. [A] commonsense reading of the complaint demonstrates that there could be no likelihood of confusion. The complaint explicitly disavows any association with pornographic materials, sexual dysfunction drugs, or sexually-oriented dating services. This contravenes likelihood of confusion, so Stayart pleaded herself out of court. (Query: before 1999, would Bob Dole have had a claim? He'd never previously been associated with sexual dysfunction drugs, so wouldn't it have been just as implausible that he'd be a pitchman for them?) No one who accessed these links could reasonably conclude that Bev Stayart endorsed the products at issue.

Stayart argued initial interest confusion against AdultFriendFinder. But on the internet, initial interest confusion depends on relatedness of goods and a consumer's level of care. Given that Stayart's identity is completely unrelated to AdultFriendFinder's services, initial confusion won't facilitate free riding on another mark's goodwill. Without a meaningful effect on the market, confusion is of little or no consequence under the Lanham Act. The type of person looking for information about Bev Stayart would not be fooled into using an online adult-oriented dating website. (I'd add in to find her at the end of that; the court might be surprised to find outjust as Stayart might bethe non-Stayart-related interests of the type of people looking for information about Stayart. I'd be willing to bet that even genealogists and animal rescuers sometimes like to meet adult friends!)

Next, a puzzling CDA discussion. The court commented that if Stayart successfully stated a false endorsement claim under the Lanham Act, it would probably fall under the CDA's intellectual property exclusion. But, it continued, one of the fatal flaws of that claim is that Yahoo! didn't use Stayart's name in connection with its own goods or services. It just included snippets from third-party websites and didn't create the content of which Stayart complained. So the proper analysis is vicarious liability/contributory infringement under the Lanham Act.

Under settled doctrine, Yahoo! can't be held liable for failing to remove the search results even after Stayart complained. It didn't control the third-party websites, which fact defeated both contributory and vicarious liability. (That's a shortcut on contributory liability analysis, but not particularly troubling under the circumstances.) The only way Yahoo! could control the results would be to change its algorithm, which goes to the heart of Yahoo!'s role as an interactive computer service. Because ordinary search engines play no part in developing any unlawful searches, Yahoo! should be entitled to immunity because it acted as an interactive computer service, even though Stayart's claims are nominal intellectual property claims. Immunizing Yahoo! doesn't contravene the CDA's IP exclusion because Stayart doesn't have a valid IP claim.

Comment: oh, my. Look, I like CDA immunity generally. But what's weird here is not the court's willingness to use CDA reasoning on an IP claim despite the IP exclusion; what's weird is the court's failure to notice that IP secondary liability doctrine itself incorporates the tech-promoting rationales underlying the CDA. Well, trademark does much more than copyright, these daysbut it's trademark doctrine that's at issue here! There's no need to bring in the CDA! And that last bitthis analysis only applies because Stayart doesn't have a valid IP claimmakes this whole excursion even more obviously useless.

The court then said that matters were less clear with respect to AdultFriendFinder. The site is in some ways interactive, but Stayart's complaint relates to the banner ad associated with the bev-stayart.html URL. AdultFriendFinder's role in the creation of the banner ad content was unclear, so the court couldn't grant it immunity at this stage.

The only claims that remained were state-law claims. Given that the dismissal was on the pleadings, ordinarily a federal court should relinquish jurisdiction, unless it is so obvious how the claims should be decided that the plaintiff should be put out of her misery rather than involving state-court resources. Defendants argued that Wisconsin requires a name to have commercial value in order to maintain a right of publicity claim. But some variations of the appropriation tort, which Wisconsin may recognize, require only commercial use plus bruised feelings. (Doesn't Yahoo! get out of this even if AdultFriendFinder has to proceed in state court? Under what theory is Yahoo!'s use commercial? If it's using snippets from other sites, how can it possibly be distinguished from the New York Times using Stayart's name in a story?)

The distinction between appropriation and the right to publicity (based on commercial damage) is also relevant to CDA immunity. The latter is an IP claim. (Implicit holding: to the extent Stayart is bringing an appropriation claim, Yahoo! is immune.) Plus there's the Perfect 10 versus Friendfinder split over whether state IP claims are preempted by the CDA. Since this is an unsettled issue of federal law, the court couldn't conclude that there was an obvious resolution of the state law claims. Even though the Court already held that Yahoo! was entitled to CDA immunity, the Court cannot say with certainty that a potential right to publicity claim under Wisconsin law is without merit, meaning that the intellectual property exception could save Stayart's claims. Also, AdultFriendFinder's CDA status is unclear, leaving it potentially vulnerable under either a misappropriation or right of publicity claim.

Jammie Thomas-Rasset

Much of Jammie Thomas-Rasset's legal arguments following this summer's $1.92 million Recording Industry Association of America file sharing jury verdict against her don't have much weight or precedent.

Clearly, that a jury in June ordered her to pay $80,000 for each of the 24 music tracks she infringed on Kazaa is outrageous and shocks the conscience and there's no rational relationship between the amount of harm suffered by the recording industry and the award granted.

Thomas-Rasset wass the nation's first sharing defendant to go before a jury. The RIAA has filed more than 30,000 lawsuits targeting individuals, and most have settled out of court.

That said, in their latest court papers, (.pdf) Thomas-Rasset's legal team again is sticking to the argument that the whopping jury award is a due process violation all in a bid perhaps to secure a third trial. (The first ended in a $222,000 judgment against the Minnesota woman, but a mistrial was declared after the judge conceded he gave faulty jury instructions)

Still, it is true that the U.S. Supreme Court and the lower courts have repeatedly reduced lofty jury awards based on so-called due process breached. But those were punitive damages awards, not statutory damages awards.

Those punitive damage reductions, including the Exxon Valdez oil spill disaster, do not apply to Thomas-Rasset's case although Thomas-Rasset's defense team suggests there's always a first.

Punitive damages are the amount a jury awards to punish conduct of an offender. Up until recently, there generally has been no limit. But the Supreme Court has suggested that punitive damages should be limited to about no more than 10 times the amount of actual damages a jury awards.

Higher ratios, the courts have said, are due process breaches because defendants have no notice ahead of time about the lofty financial consequences of their actions.

But the law is crystal clear when it comes to the Copyright Act, the law under which the RIAA sued Thomas-Rasset. Juries can award up to $150,000 per violation. Punitive damages do not fall under the Copyright Act.

One of the only points in Thomas-Rasset's brief that makes a compelling argument is that the Copyright Act, when amended in 1999, didn't conceive of non-commercial cases the RIAA has been bringing the past six years.

The notion that Congress decided that the award of statutory damages in this case was somehow appropriate or tailored to ensure deterrence is a fiction that the plaintiffs would have this court adopt. The Congress that enacted the statutory-damages provision of the Copyright Act could not have had the kinds of illegal but non-commercial music downloading here at issue in mind, defense attorney K.A.D. Camara argues in recent briefs.

It's true: There's no doubt that a $1.92 judgment over $24 worth of music provides the clearest example yet of the abuses made possible by the 1976 Copyright Act, which Congress modified in 1999, at the behest of Hollywood and the recording industry, to carry a maximum penalty for a single infringement of up to $150,000.

That statutory penalty was intended to bankrupt large-scale commercial pirating operations, like organized DVD and CD bootleggers not to put individuals like Thomas-Rasset in debt for the rest of their lives.

Still, the RIAA is crying foul.

After Thomas-Rasset refused to settle out of court, the industry is now demanding that Thomas-Rasset pay up. The RIAA is also seeking U.S. District Judge Michael Davis to issue an injunction barring her from future file sharing.

Plaintiffs' evidence showed that defendant knew what she was doing was wrong, that she did it anyway, and then lied about it for years. Through two trials, defendant still shows no remorse whatsoever for her actions and has made it clear that she has no intention of ever satisfying any portion of the judgment against her, Timothy Reynolds, the RIAA's attorney, wrote (.pdf) Davis.

Judge Davis of Minnesota could rule on the retrial and injunction issue any time.

See Also:

• Jury in RIAA Trial Slaps $2 Million Fine on Jammie Thomas
• Feds Support $1.92 Million RIAA File Sharing Verdict
• Will File-Sharing Case Spawn a Copyright Reform Movement?
• Thomas Seeks New RIAA Trial; Says $1.92 Million Verdict Monstrous
• File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA
• Jury Dings File Sharer $675000, RIAA Prevails Update

The site is still fairly new, but's already beginning to attract some top talent, including Susan Kare, who is famous for designing the on-screen graphics of the original Macintosh computer and many of Facebook's popular virtual gifts. LTL Prints is featuring many of these artists in a collection of big wall art, which includes art curated by the Start Soma Art Gallery.

It's hard to really get excited about stickers, but these are actually pretty impressive. They're made out of a study fabric-based paper that's really hard to tear (we tried), and it can also be applied many times on various surfaces, like walls and glass. You can roll the sticker up in a ball, and it will pull apart without any lasting damage. Contrast that with most other large stickers, which are typically made of vinyl, and it becomes clear that these are truly some high grade stickers.

Prices for the stickers range from $20 for a 2ft sticker to $165 for a massive 7 ft tall sticker. From there you're free to charge higher prices if you sell your sticker in the site's integrated marketplace.

Crunch Network: CrunchBase the free database of technology companies, people, and investors

Horizon argues that Bonnen libeled the company with her May 12th tweet, which read in part Who said sleeping in a moldy apartment was bad for you? Horizon Realty thinks it's okay.

Bonnen's alleged twitter account, abonnen, is no longer active. But, based on information in Google's cache, it appears that Bonnen had 22 followers.

The statements are obviously false, and it's our intention to prove that, said Horizon's Jeffrey Michael. We're a sue first, ask questions later kind of an organization. Michael added that the company has a good reputation it wants to preserve.

Sue First, Ask Questions Later

Horizon may be breaking new ground in public relations with its response.

By suing Bonnen for $50,000 over a tweet that was probably seen by a fraction of abonnen's 22 followers, the company is bringing Bonnen's complaint to tens of thousands of readers on Twitter, in blogs and in news stories that the situation will generate.

Instead of preserving the company's good reputation, Horizon Realty is establishing itself as a sue first, ask questions later kind of company.

The kind of company that will sue you for $50,000 if you have something bad to say about one of their apartments.

If Horizon's lawsuit goes forward, fixing the damage it will do to the company's reputation will take a lot more than $50,000.

Horizon's response looks like a textbook case of what not to do when faced with a new media PR problem. What do you think the right response would have been?

Note: If you want to share this on Twitter or other social network, hit the Share/Save button below!

Horizon argues that Bonnen libeled the company with her May 12th tweet, which read in part Who said sleeping in a moldy apartment was bad for you? Horizon Realty thinks it's okay.

Bonnen's alleged twitter account, abonnen, is no longer active. But, based on information in Google's cache, it appears that Bonnen had 22 followers.

The statements are obviously false, and it's our intention to prove that, said Horizon's Jeffrey Michael. We're a sue first, ask questions later kind of an organization. Michael added that the company has a good reputation it wants to preserve.

Sue First, Ask Questions Later

Horizon may be breaking new ground in public relations with its response.

By suing Bonnen for $50,000 over a tweet that was probably seen by a fraction of abonnen's 22 followers, the company is bringing Bonnen's complaint to tens of thousands of readers on Twitter, in blogs and in news stories that the situation will generate.

Instead of preserving the company's good reputation, Horizon Realty is establishing itself as a sue first, ask questions later kind of company.

The kind of company that will sue you for $50,000 if you have something bad to say about one of their apartments.

If Horizon's lawsuit goes forward, fixing the damage it will do to the company's reputation will take a lot more than $50,000.

Horizon's response looks like a textbook case of what not to do when faced with a new media PR problem. What do you think the right response would have been?

Retired NYPD sergeant Dexter Brown was shot in the 1998 incident and sued the city and police department. It was revealed recently in court papers that the shooter, Det. Luis Lopez, was assisting in the arrest at a Brooklyn crack house. The city Law Department says the shooting was accidental and did not admit wrongdoing.

Brown walks with a cane and suffers chronic pain from damage caused by the shooting. The 45-year-old is retired on disability and cannot work. Brown says he feels vindicated his story came out. The settlement was reached Monday, as the trial was to begin.

The social news site Digg found itself criticized earlier this year after the release of the DiggBar and Digg short URLs, which some said stole traffic and pagerank from publisher sites to increase Digg's pageviews.

Now Digg faces a new accusation: that it has, either accidentally or on purpose, changed the behavior of these URLs to send logged-out users to Digg.com in preference to the publisher sites. We were able to verify that Digg is indeed redirecting Digg URLs to its own site.

DiggBar Controversy

First, a little background. At launch, Digg URLs provided an alternative to popular URL shorteners like bit.ly and TinyURL (commonly used to save characters on Twitter), except that the links loaded publisher sites in framed pages on Digg.com. Some claimed that this was a way to build traffic to Digg while hurting the search engine traffic provided to publishers.

After a firestorm in the SEO community that lead to some sites adding framebreakers to prevent Digg framing their sites, Digg relented and decided to only frame pages if the user was logged in to Digg at the time.

New Digg URL Behavior: Redirects Traffic to Digg.com

This week Digg users have noticed an odd change in the way Digg URLs work: for logged out users, they no longer go to the site they link to. Instead, the links go to the Digg.com page for that story, provided it has already been submitted to Digg. The result? The thousands of short links that people are trying to create to their favorite websites are instead redirecting their followers to a Digg landing page.

The blog EndofWeb, which appears to have spotted the issue first, calls this a bait and switch operation.

You can try it out for yourself: choose any webpage URL and place Digg.com/ at the front of it to create a Digg URL. While this used to create a link that redirects to the original story, it now simply directs visitors to the Digg.com landing page for that story.

Intentional Change or Mistake?

If intentional, the move is likely to sour Digg's relationships with publishers: Digg became popular based on its ability to drive traffic to publisher sites, but the DiggBar showed Digg's intent to retain more of that traffic on its own site.

If a mistake, it's likely to damage trust in URL shorteners: users want to be sure that when they create a link, it'll send visitors to the intended destination. When that process fails, it hurts confidence.

We've reached out to Digg via email for more information.

What do you think? Are your Digg URLs directing to Digg.com?

Social media provides an inexpensive and powerful platform for regular people to make their voices heard to a massive audience. Unfortunately, people don't always use that power in reasonable and positive ways.

When a business faces an attack on its brand through social media, what is the appropriate response?

For instance, what about party-goers who have a few drinks, get out of hand, and are expelled from a club? When iphones come out and the club brand is ravaged online by angry tweets and videos about poor service, how is the club supposed to respond? Is the club supposed to publicly admit wrongdoing when none was committed and set a precedent for others to complain so they can get free stuff? It's a slippery slope for both a brand and the consumers that enjoy it.

Consider: A video in which country singer Dave Carroll mourns the damage of his Taylor guitar (supposedly) during a flight on United Airlines:

On his website, Dave Carroll moans the saga of his flight with United Airlines and the discovery of his damaged guitar. After getting the runaround from low-level company representatives about a damage claim, he concludes:

I realized then that as a songwriter and traveling musician I wasn't without options. In my final reply to Ms. Irlweg [The United Airlines representative] I told her that I would be writing three songs about United Airlines and my experience in the whole matter. I would then make videos for these songs and offer them for free download online, inviting viewers to vote on their favourite United song. My goal: to get one million hits in one year.

It's an interesting marketing plan for a small time musician in need of some publicity. He finished his diatribe with,

I should thank United. They've given me a creative outlet that has brought people together from around the world. We had a pile of laughs making the recording and the video while the images are spinning on how to make United: Song 2 even better than the first. So, thanks United! If my guitar had to be smashed due to extreme negligence I'm glad it was you that did it. Now sit back and enjoy the show.

And so he launched his show with website updates and a youtube video that continues to gain leverage through social media.

One of the drawbacks of social media is that most users have short attention spans and little use for fact-checking. I did a bit of my own fact-checking about Dave Carroll and his #unitedbreaksguitars experience: It turns out that United explicitly states on its website that it is not liable for damage to fragile items and includes the type of cases approved for transport of musical instruments.

Dave states that he witnessed ground crew throwing his band's instruments and yet he neglected to check his ostensibly-beloved Taylor guitar upon arrival. He says, The guitar case looked ok and we were tired.

Now, take the perspective of the United Airlines representative dealing with this situation: A guy complains to you that his expensive guitar was damaged but that he didn't notice it until a day after his flight. What is your first thought?

If your silly claim/fraud detector went off, good. It should. There are many ways a guitar could be broken in 24hrs and it would be ridiculous for an airline to welcome a suspicious liability.

Dave admits to filing a claim after leaving the airport. I'm familiar enough with shipping claims to know that once you leave the location of a business you're filing against without confirming damages, your chances of successfully settling a claim dramatically dwindle.

But all was not lost for Dave Carroll and the Sons of Maxwell. They had social media, some production talent, and a desire to embarrass a company into bending its rules just to shut them up.

United Airlines responded via Twitter to the barrage of tweets directed at them concerning the video:

Is this a step forward for social media? I don't think so. Dave Carroll and his Sons of Maxwell get some cheap publicity but at what cost to the rest of us?

We encourage companies to engage their customers through social media but little is said about how to deal with rogue campaigns bent on embarrassing a brand into cooperation.

It's tempting to jump on the UnitedBreaksGuitars bandwagon and gleefully watch as social media is used to force a company into action. ( This in spite of legitimate reasons for inaction.) It's tempting to say the customer is always right and ignore the need for policies meant to protect companies from fraudulent claims. It's tempting to get caught up in the seductive power of social media and forget that some people are interested only in promoting themselves.

Did United Airlines break Dave Carroll's guitar? Perhaps. But the only person he should be singing to right now is himself for not checking his guitar for damages when knew the rigors of its journey.

If social media is going to be a sustainable conversation between consumers and brands, it's important that we show respect to the brands that bravely step into this space. We need to be responsible participants in social media and use the powerful tool we've been given for good causes and not for senseless complaints.

Social media need not be about consumers whining to get free stuff. It must not be.

How do you think United Airlines and other companies faced with a similar situation should respond?

Share this post on Twitter

photo: dave carroll music

Hat tip to Stuart Foster for alerting me to this story via twitter.

Related posts:

1. Sexual Harassment And Social Media
2. How Do You Deal With Trolls? Trent Reznor (NIN) Walks Away From Social Media
3. A Tale Of Two Business Models

Apparently all print subscribers haven't been asked (this by way of a full disclosure), but the New York Times is asking its dead tree readers whether they'd be willing to pay to access the paper's content online.

The numbers being floated are $2.50 a month for subscribers, and $5 a month for everyone else, according to Bloomberg.com.

Nytimes.com is currently free, and a previous attempt to put some their columnists behind a paywall, Times Select, ended with great fanfare nearly two years ago with the slogan: Now, everyone is entitled to our opinions.

But that was then: Way before the global recession, when the New York Times Co was worth four times what it is today, wasn't selling assets and cutting its payroll, the advertising market hadn't gone into freefall (the industry has lost more than $11 billion in ad sales since 2005) and Google wasn't the enemy.

The notion of beginning to charge for content that has always been free is extremely controversial. Some media observers simply think it cannot work and some industry professionals think it must absolutely happen.

Nobody can say it will work, and the risk of trying and failing could do serious permanent damage to a news brand to say nothing of being utterly demoralizing to everyone else who might have thought it was the last, best hope.

There have been some newspaper attempts to start asking readers to pay for what had been free content (like Times Select) but no major player has ever tried charging customers directly with any gusto the digital equivalent of giving no part of the print paper away for free. The Wall Street Journal and Financial Times have always charged online, so there was no need to re-condition their readers to go from paying zero to something. The Seattle Post-Intelligencer had to shut down its newspaper to try to survive purely in digital form, and the Christian Science Monitor curtailed print editions.

But those publications, with all due respect, are not the likes of the New York Times. Were the Gray Lady to draw a line in the sand, a lot of theory would be put to the test right quick.

It might be time for some paper to stop the threats and just do it, and an iconic brand like the Times may be the best one to try.

New York Times Considers $5 Monthly Web-Access Fee Update1 - Bloomberg.com.

Time is usually - nearly always - displayed by a circular indication: one dial and two (or three) with the time displayed around a perpetual circle. However, this 360 representation of time goes against everything we learnt as we grew up drawing a straight line on a blank page and marking it Past, Present and Future. Why do we think of time as travelling in a straight line yet display it rotating around a circle? The answer is straightforward: mechanisms that continually rotate are much simpler to produce than those that trace a straight line then return to zero. In fact, the latter is so difficult that, until now, nobody has ever managed to develop a production wristwatch with true retrograde linear displays.

The triple-cam is crafted from bronze beryllium, a metal selected for its inherently self-lubricating properties and low co-efficient of friction, and takes the form of three small inclines. The precise shape of the curve of the incline is relayed to the pivoting rack, while the teeth on the end of the rack mesh with and rotate the minute cylinder. The triple-cam makes a complete rotation in three hours so that each of the three inclines takes 60 minutes, and 180 points of reference have been calculated on each of the three cams to ensure the precise and isochronic rotation of the minute cylinder.

Model: UR-CC1

Case: available in either grey gold with titanium case back (limited edition of 25 pieces) or black gold with titanium case back (limited edition of 25 pieces); brushed-satin finish

Movement: calibre UR-CC1; automatic winding regulated by fly brake turbine pneumatic shock absorber

Indications: linear display for hours and minutes with jumping hours and retrograde minutes ; second display both digital and linear

Dimensions: 45.7mm x 43.5mm x 15mm

Dial and Bridges: ARCAP P40. SuperLumiNova treatment on hours, minutes displays

Genesis of a creation

1958. Messrs Gilbert Albert and Louis Cottier combine their talents to create a watch destined to revolutionize the horological world. Their idea is completely outrageous: it is the world's first watch to feature a linear display. It is an extraordinary, avant-garde piece that fulfils none of the aesthetic criteria of the time. As for its linear indication, the idea may seem simple but the execution is a technical headache of monumental proportions. However Messrs Albert and Cottier believe in it and they stick with it, creating a prototype for Patek Philippe.

1959. A patent is deposited by Louis Cottier, detailing the technical scale of the achievement. Then nothing. The prototype is put on to one side. Does the watch even work? Today nobody knows for sure. It took its place in the corner of the Patek Philippe museum and proceeded to arouse curiosity from time to time.

1998. With pencil and paper Martin Frei, co-founder of the URWERK brand and an aesthete at heart, sketches the first outline of his future creation: a watch in which the hours and minutes are indicated by two straight, parallel lines. But he hesitates. With Felix Baumgartner, master watch-maker and co-founder of URWERK, another idea springs to mind the concept of the hour satellite, presented for the first time at Basel. The earlier project is postponed, sine die.

2006. URWERK is henceforth known and recognized for its mechanical hour satellite watches in which orbiting hour satellites indicate the minutes. But the idea of developing a different way of telling the time continues to fascinate Felix Baumgartner. In the end it is the Alfred Hitchcock film The Birds that gives him the decisive nudge in the right direction. In one of the most famous scenes from the film, the heroine seeks refuge in an old Dodge. The image lasts only a few seconds but it is crucial a close-up of the dashboard and its linear speedometer. Yes. That's it! A continuous line with which to mark time. Felix and Martin work non-stop on this new project. Their research leads them to the discovery of Gilbert Albert and Louis Cottier's watch. It will be their muse.

Original Prototype Movement

Watchmaker Felix Baumgartner

I am not big on nostalgia, but I have always loved the linear speedometers found on old cars. My older brother had a 1960's Volvo and it was that which gave us the first idea for a horological linear indication. I recently watched the film The Birds' by Alfred Hitchcock, and in it the heroine took refuge in an old Dodge with a linear speedometer- it is one of my favourite scenes. There are very few wristwatches with linear indications. One of them, if not the first, was The Cobra', which was developed in the late 1950s by Mr. Louis Cottier. It is sensational! Although it was created over half a century ago, it is still very contemporary. Unfortunately, it only exists as a single prototype and was never put into production. Now, 50 years after he filed his patent (1959), URWERK pays homage to the work of Louis Cottier by creating its own interpretation of the Cobra. -Felix Baumgartner

Designer Martin Frei

I am interested in the perception of time. Physicists tell us that time can be warped or stretched, and our daily experiences are with the circular cycles of the days, seasons and years. But I am also intrigued that time can be ordered, even straitjacketed, to flow in a linear direction - a straight line from the past, through the present, to the future. And, because this can represent an individual's lifeline, I feel that this linear format can be a very human way to look at time. That plus the fact that I think it looks really cool! -Martin Frei

Time is usually - nearly always - displayed by a circular indication: one dial and two (or three) with the time displayed around a perpetual circle. However, this 360 representation of time goes against everything we learnt as we grew up drawing a straight line on a blank page and marking it Past, Present and Future. Why do we think of time as travelling in a straight line yet display it rotating around a circle? The answer is straightforward: mechanisms that continually rotate are much simpler to produce than those that trace a straight line then return to zero. In fact, the latter is so difficult that, until now, nobody has ever managed to develop a production wristwatch with true retrograde linear displays.

The triple-cam is crafted from bronze beryllium, a metal selected for its inherently self-lubricating properties and low co-efficient of friction, and takes the form of three small inclines. The precise shape of the curve of the incline is relayed to the pivoting rack, while the teeth on the end of the rack mesh with and rotate the minute cylinder. The triple-cam makes a complete rotation in three hours so that each of the three inclines takes 60 minutes, and 180 points of reference have been calculated on each of the three cams to ensure the precise and isochronic rotation of the minute cylinder.

Model: UR-CC1

Case: available in either grey gold with titanium case back (limited edition of 25 pieces) or black gold with titanium case back (limited edition of 25 pieces); brushed-satin finish

Movement: calibre UR-CC1; automatic winding regulated by fly brake turbine pneumatic shock absorber

Indications: linear display for hours and minutes with jumping hours and retrograde minutes ; second display both digital and linear

Dimensions: 45.7mm x 43.5mm x 15mm

Dial and Bridges: ARCAP P40. SuperLumiNova treatment on hours, minutes displays

Genesis of a creation

1958. Messrs Gilbert Albert and Louis Cottier combine their talents to create a watch destined to revolutionize the horological world. Their idea is completely outrageous: it is the world's first watch to feature a linear display. It is an extraordinary, avant-garde piece that fulfils none of the aesthetic criteria of the time. As for its linear indication, the idea may seem simple but the execution is a technical headache of monumental proportions. However Messrs Albert and Cottier believe in it and they stick with it, creating a prototype for Patek Philippe.

1959. A patent is deposited by Louis Cottier, detailing the technical scale of the achievement. Then nothing. The prototype is put on to one side. Does the watch even work? Today nobody knows for sure. It took its place in the corner of the Patek Philippe museum and proceeded to arouse curiosity from time to time.

1998. With pencil and paper Martin Frei, co-founder of the URWERK brand and an aesthete at heart, sketches the first outline of his future creation: a watch in which the hours and minutes are indicated by two straight, parallel lines. But he hesitates. With Felix Baumgartner, master watch-maker and co-founder of URWERK, another idea springs to mind the concept of the hour satellite, presented for the first time at Basel. The earlier project is postponed, sine die.

2006. URWERK is henceforth known and recognized for its mechanical hour satellite watches in which orbiting hour satellites indicate the minutes. But the idea of developing a different way of telling the time continues to fascinate Felix Baumgartner. In the end it is the Alfred Hitchcock film The Birds that gives him the decisive nudge in the right direction. In one of the most famous scenes from the film, the heroine seeks refuge in an old Dodge. The image lasts only a few seconds but it is crucial a close-up of the dashboard and its linear speedometer. Yes. That's it! A continuous line with which to mark time. Felix and Martin work non-stop on this new project. Their research leads them to the discovery of Gilbert Albert and Louis Cottier's watch. It will be their muse.

Original Prototype Movement

Watchmaker Felix Baumgartner

I am not big on nostalgia, but I have always loved the linear speedometers found on old cars. My older brother had a 1960's Volvo and it was that which gave us the first idea for a horological linear indication. I recently watched the film The Birds' by Alfred Hitchcock, and in it the heroine took refuge in an old Dodge with a linear speedometer- it is one of my favourite scenes. There are very few wristwatches with linear indications. One of them, if not the first, was The Cobra', which was developed in the late 1950s by Mr. Louis Cottier. It is sensational! Although it was created over half a century ago, it is still very contemporary. Unfortunately, it only exists as a single prototype and was never put into production. Now, 50 years after he filed his patent (1959), URWERK pays homage to the work of Louis Cottier by creating its own interpretation of the Cobra. -Felix Baumgartner

Designer Martin Frei

I am interested in the perception of time. Physicists tell us that time can be warped or stretched, and our daily experiences are with the circular cycles of the days, seasons and years. But I am also intrigued that time can be ordered, even straitjacketed, to flow in a linear direction - a straight line from the past, through the present, to the future. And, because this can represent an individual's lifeline, I feel that this linear format can be a very human way to look at time. That plus the fact that I think it looks really cool! -Martin Frei

So Cassetica sued in federal court, alleging a number of causes of action, including violations of the Computer Fraud and Abuse Act, 18 USC 1030 et seq. (CFAA). CSC moved to dismiss pursuant to FRCP 12(b)(6) for failure to state a claim. The court granted the motion, finding that Cassetica did not plead either damage or loss as required by the CFAA.

What the CFAA requires

Interpreting the CFAA differently that at least one other judge in the Northern District of Illinois has (cf. Garelli Wong & Assoc. v. Nichols, 551 F.Supp.2d 704 (N.D.Ill. 2008)), Judge Kendall held that Cassetica was required to plead either damage or loss as such terms are defined in the CFAA. (In Garelli Wong, the court held that both damage and loss must be pled.)

Under the CFAA, damage is defined as any impairment to the integrity or availability of data, a program, a system, or information. Loss is defined as any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.

Insufficient damage allegations

The bare allegations of damage in the complaint were not enough. The court found that Cassetica did not allege any facts that would plausibly suggest that the software downloads authorized or not caused a diminution in the computers or usability of [Cassetica's] computerized data. The court went on to observe that [c]ritically absent from the Complaint are allegations that CSC's downloads resulted in lost data, the inability to offer downloads to its customers, or that the downloads affected the availability of the software.

Insufficient loss allegations

Cassetica's complaint also failed to plead loss. The allegations primarily dealt with the lost fees Cassetica would have received had the alleged unauthorized downloading not taken place. Because Cassetica did not allege that it lost revenues as a result of an interruption in service caused by CSC, its claim for lost revenue fell outside the CFAA's definition of loss.

Download picture courtesy Flickr user soren_nb under this Creative Commons license.

If anything sucks more than being the target of an ambitious but delusional gubernatorial candidate who has suddenly developed a bit of a fetish for prostitution, it's being ignored by that candidate. As far as Village Voice sees the world, Craigslist just got a bunch of free press. And they want their share.

When Craigslist management was facing a criminal investigation for listings on the site they did the smart thing. They talked about the law, and they pointed out that the real smut was on other sites that were being ignored by the South Carolina Attorney General. If you really want hard core porn and prostitution, Craigslist CEO Jim Buckmaster pointed out, check out Village Voice's BackPage.com.

That's all body fluids under the bridge now, of course, since a federal judge smacked down McMaster and forbid him from stalking Craigslist management.

But Village Voice is still smarting from those Buckmaster links in that blog post. Yesterday they issued a very official press release titled Village Voice Media to Craigslist CEO Buckmaster: Calm Down, Back Off; There is Nothing Wrong With a Little Competition.

In an email, Village Voice's PR firm accuses Buckmaster of leveraging the legal bind he's in to damage Craigslist's competition.

The real reason for the press release and press outreach, of course, is to get a little bit of the spotlight pointed to backpages, too. Because their official story doesn't make sense.

Backpages has adult ads, lots and lots of them, and they're proud of it: We will continue to exercise our right to accept legal adult postings, they say. All Buckmaster did was link to a whole bunch of them. And since backpages desperately needs the traffic, what they really should be doing is thanking Craigslist, not attacking them.

What we learned today: If you really want to pay for sex, backpages is the place to go.

Full press release is below:

Village Voice Media to Craigslist CEO Buckmaster: Calm Down, Back Off; There is Nothing Wrong With a Little Competition

PHOENIX, May 29 /PRNewswire/ Last Friday, Jim Buckmaster, CEO of Craigslist, fired a deliberate, unnecessary and wholly inaccurate shot across the bow of Village Voice Media and backpage.com, our online classified advertising property. Given the serious nature of what Buckmaster inferred in his post about Village Voice Media newspapers and backpage.com, we can't sit on our hands and be silent.

In the original blog post, which was later submarine edited to reword and soften some of the attacks towards Village Voice Media, Buckmaster complained that politicians are attacking Craigslist but not Village Voice Media and other media outlets because they have a need for positive stories and campaign endorsements from those very same newspapers.

Is it possible that writing stories critical of Craigslist's (relatively tame) adult service' section is more career-friendly than attacking their own employer (or journalistic media brethren) for operating a (far more graphic) adult service' section of their own?

Buckmaster and Craigslist are in a tough, and in many ways, frightening situation - they have a number of moralistic state Attorneys General threatening them over their adult ads, and a raft of bad press following the terrible tragedy in Boston that the company is admittedly in no way responsible for. But, the manner in which Buckmaster is responding to this pressure - by disingenuously lashing out at competitors and caving to political pressure - is inexcusable, and displays a remarkable lack of sound judgment.

In 2002, Village Voice Media recognized the forces that were changing the classified advertising market and created backpage.com to answer that challenge. We've put a lot of work into making it the No. 2 free classifieds site in U.S. We're fine with being No. 2, proud in fact. Buckmaster, apparently, is not. Instead of working with his competitors to find a way to solve, or at least mitigate issues surrounding adult ads - the shortcomings of automatic content filters is something we are all trying to fix - Buckmaster simply attempted to take the competition down with him. And, his methods leave much to be desired.

First off, our newspapers don't endorse politicians and rarely have anything nice to say about them, so to say that politicians aren't going after Village Voice Media because they need our endorsement isn't viable. Secondly, Buckmaster is only complaining because a competitor is challenging his economic advantage in the free classified arena - which he built in part on adult ads - and has made him a very wealthy man. His talk of building community and serving his users rings hollow. It now appears that, as is so often the case with New Age entrepreneurs, it's all about the money.

We will continue to exercise our right to accept legal adult postings from our users and concentrate on growing backpage.com. We are aggressively building additional technical solutions as well as increasing our manual site inspections to improve efficiency of removing content that is illegal or otherwise violates our Terms of Use.

About Village Voice Media

Village Voice Media is a collection of 15 weekly newspapers and daily Web sites, including New York's Village Voice, the LA Weekly, Denver's Westword and the Phoenix New Times. Online, in print, and on mobile devices, VVM's products combine music, food and events coverage with gritty, hard-hitting journalism to create the most powerful city guides in each market. While the focus of the brand is local, its free classifieds site backpage.com, partnership with social recommendation engine LikeMe.net and national sales force, Voice Media Group, extend its reach on a national level.

Crunch Network: CrunchGear drool over the sexiest new gadgets and hardware.

[Instructor's name] IS NO LONGER TEACHING ANY COURSES AT THE U OF C!!!!! Remember when she told us she was a long-term prof? Well actually she was only sessional and picked up our class at the last moment because another prof wasn't able to do it .. lucky us. Well anyways I think we should all congratulate ourselves for leaving a [instructor's name]-free legacy for future [law and society] students.

It's pretty hard to see how this isn't just an expression of opinion, but the university thinks it qualifies as non-academic misconduct. The problem is, it's not at all clear how. The only part of the definition that doesn't involve injury, damage or theft is "conduct which seriously disrupts the lawful educational and related activities of other students and/or University staff." It's hard to see how a Facebook post of this nature "seriously disrupts" much of anything (until someone gets put on probation and the Streisand Effect kicks in). But there's a nice little "includes but is not limited to" that makes the definition non-exhaustive, which is likely what university officials are relying on. You'd think that other instances of misconduct would be similar (hurting people, breaking stuff, stealing, "serious disruptions"), but apparently "expressions of opinion that we don't like" can qualify...

A computer science professor interviewed said the posts "can be compared to putting up notices all over the university campus" (quoting the article, not the prof). But this is more like putting up a notice off campus (albeit in public). It may not have been nice, but it's pretty troubling that a student's right to express an opinion (free speech much?) on a third-party site is overridden without a clear policy violation.

I've had direct experience with this sort of thing. A couple years ago, friends of mine at another university were sent ominous emails and hauled into their department head's office over some comments about a professor on Facebook (jokes, e.g. "crazy drunk [instructor A] is better than boring stoned [instructor B]!"). The department heads argued that the comments were "visible to the community" (similar to the "notices on campus" argument), but they clearly didn't understand the context (wall post or message? profile or group?) or privacy settings, and they couldn't even locate the comments on the site (someone had copied and pasted them into an email). They, too, failed to specify how any policies were actually violated (or even which ones), yet they'd gone ahead and notified the professor of the students' comments and identities (while there was still grading to be done). We convinced them to back down and apologize, but it took a solid week, mid-semester, to deal with the mess.

Universities should understand and develop policies about social networking sites before they take action against students. If they can't be clear about what qualifies as misconduct, how can students expect to know? What's the difference between a Facebook group and study group? An email and a Facebook message? What difference do privacy settings make (hopefully some...)? How was this post on a Facebook group different from a review on RateMyProfessors.com? What's the difference between off-campus speech and speech on non-school websites? Before policing student speech off-site (problematic in and of itself), universities should at least ask these questions and develop policies first. It doesn't seem like many of them have. It's pretty ridiculous to just throw social networking under the ambiguous "but not limited to" umbrella.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

The Los Angeles authorities said John Schiefer, 27, was the nation's first defendant to plead guilty to wiretapping charges (.pdf) in connection to using botnets.

Schiefer, who went by the online handle "acidstorm," faced as many as 60 years in prison and acknowledged using a botnet to remotely control computers across the United States. Once in control of the computers, the authorities said, (.pdf) his spybot malware allowed him to intercept computer communications. He mined usernames and passwords on accounts such as PayPal and made purchases totaling thousands of dollars without consent.

The authorities said he worked by day as an information security consultant with 3G Communications. After his guilty plea, Schiefer was hired at Mahalo, the so-called "human powered search engine." Its founder, Jason Calacanis wrote that the company failed to realize that the Los Angeles company had hired a man who had pleaded guilty to being a hacker.

Calacanis point out that Mahalo users' data was not breached by Schiefer.

Note to Mahalo Users: John's work is well-supervised. Mahalo follows strict security policies and we don't store any sensitive data anyway. (Even if one of our employees did go off the deep end, the most they would have access to would be your questions and answers on Mahalo Answersnot much damage can be done there since they're all public anyway).

The defendant was among eight individuals indicted or successfully prosecuted in a crack down on black hat hackers who use armies of zombie computers to commit financial fraud, attack web sites with floods of traffic and send spam. The crimes at issue involved more than $20 million in losses, according to the FBI.

The FBI dubbed the eight cases "Operation Bot Roast II" -- the second round of its investigations against botnets, one of the most dangerous threats online today. The first FBI crackdown on botnets was announced in June, 2007.

See Also:

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• Miley Cyrus Hacker Raided by FBI
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Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

Bridal Expo produces the Bridal Extravaganza Show in Houston, one of the largest bridal shows in the US. Hundreds of exhibitors and thousands of prospective brides attend; the show has been in business for 25 years and keeps databases of attendees and potential clients. Defendant Wedding Showcase scheduled the Houston Wedding Showcase for Feb. 2009, a few weeks after the Bridal Extravaganza at the same location. The individual defendants van Florestein and Moore, were key to creating the Wedding Showcase and are former Bridal Expo employeesshow manager and assistant. They left Bridal Expo in July 2008, but not before Moore downloaded Bridal Expo's databases and other information.

Defendants used Bridal Expo's database to mail ads to vendors for Wedding Showcase's November 2008 seminar. They used Google to advertise the Wedding Showcase as Houston's #1 Bridal Show, and mailed a brochure to vendors using quotations attributed to our vendors and our brides that actually came from other bridal shows on the East Coast, produced by another company.

In an earlier state court suit, Bridal Expo brought claims for trade secret misappropriation, unfair competition, and related torts. The judge denied a TRO and after a hearing also denied a temporary injunction. Bridal Expo nonsuited the state case and sued in federal court, using the same claims along with a Lanham Act false advertising claim and a Computer Fraud and Abuse Act claim.

On the state claims, the district court refused to disturb the state court's ruling on the temporary injunction. All the elements of collateral estoppel were present, though this of course only affected the availability of temporary relief, not a final adjudication on the merits. Given that only a month had passed since the state court denial, and that plaintiffs had held a successful bridal show in the interim (thus suggesting lack of harm), the court found no reason to revisit the state court's decision.

On the false advertising claim, plaintiffs argued that Houston's #1 Bridal Show was literally false, since Bridal Extravaganza is, in fact, the largest bridal show in Houston by any number of measures, and that the statement wasn't puffery because it was unambiguous and needed no additional context to give it meaning. Also, they argued that the brochures were literally false because defendants have yet to produce a bridal show in Houston.

Defendants called the Google ads puffery, and argued that the use of our in the brochures referred to the principals of Wedding Showcase, who have produced many shows. Moreover, the brochures mentioned several times that the Houston Wedding Showcase is a new show.

The court held, based on Pizza Hut, that the Google ads were too ambiguous to be actionable, and were the kind of bald assertion or general statement of superiority on which no reasonable consumer would rely. See also In re Century 21-RE/MAX Real Estate Advertising Claims Litigation, 882 F .Supp. 915, 923 (C.D.Cal.1994) (holding that # 1 was too vague to be actionable and declared ... # 1 in the United States and the World" was puffery, because it was opinion and made no reference to what was #1). Anyway, defendants stopped running the ad.

As for the brochure, plaintiffs argued that the our statements were literally false, and also that the brochure made literally false claims that van Florestein and another defenant had a combined 25 years of experience. Moreover, they argued that, by scheduling their show shortly after Bridal Extravaganza at the same location, defendants were trying to confuse customers into thinking their show was the Bridal Extravaganza.

On this record, the court found no literal falsity. Our could readily, in context, refer to the show's owners, one of whom ran the shows on the East Coast from which the our statements came. The brochure explained that the Houston Wedding Showcase would be a new show with a long history. Likewise, more than 25 years of combined experience could refer to the sum of the two principals' individual experience, not 25 years each. The court concluded that it was unlikely that a sophisticated vendor audience, familiar with the Houston wedding market, would be misled into thinking that the quoted brides and vendors were from Houston.

The evidence of confusion between the shows was that one of plaintiff's employees heard from one vendor at the Bridal Extravaganza that he was confused about who was running the Wedding Showcase, but there was no evidence of any connection to the brochure, and this was insufficient to claim confusion overall, though this might be an issue for a jury.

The CFAA claim was based on 18 U.S.C. 1030(a)(4), creating liability for a person who knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value . For a civil claim, there are extra requirements; here, the key was loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value. Loss includes costs of responding to an offense and conducting a damage assessment. Here, the claimed loss was the confidential trade secrets.

Defendants argued that their access wasn't without authorization and didn't exceed their authorization. Van Florestein and Moore accessed their work computers and took files to which they were allowed access as employees. They argued that there's a difference between access to computers and use or disclosure of information obtained through that access.

There's a split over the meaning of authorization. Some courts say that using files to harm the employer violates the CFAA even if the employee technically has authorization to access the files in the scope of her duties. Contrary to that, other courts have noted that, when Congress wanted to prohibit things like communication and delivery, it listed them. If Congress wanted to reach all wrongdoers who access information they then use to the detriment of their employers, it could have omitted the statute's words of limitation altogether. Despite the conclusions of other courts, the district court determined that, given those statutory construction arguments and the rule of lenity (since the CFAA is also a criminal statute), authorization is not exceeded just because the employee breaches her duty of loyalty to an employer.

Here, the files were copied/downloaded on the defendants' last day of employment. They hadn't signed a confidentiality agreement or any other agreement restricting access to the files they'd been working on at Bridal Expo. It was within the nature of their relationship to use their computers and access the files at issue. Indeed, a key Bridal Expo employee saw them using the computer on their final day and didn't complain, even though it was after they'd turned in their keys.

Thus, the court found plaintiffs were unlikely to succeed on the merits. Moreover, even had there been a likelihood of success, a preliminary injunction would have been unwarranted, based on the Fifth Circuit's hesitance to grant injunctive relief against the use of information obtained through a past violation of the CFAA, where there was no potential for ongoing access.

The court stated, somewhat confusingly, that it would be willing to revisit the issue if defendants were continuing to use the vendor email list to advertiseeven if there's no likelihood of success on the merits? And then the court said that even if it had found likely success on the merits, it wouldn't have entered an injunction, because plaintiffs hadn't shown irreparable harmthat successful show they'd conducted since defendants entered the marketand defendants would suffer great harm if they couldn't produce their show: they'd have to cancel contracts, unwind arrangements on short notice, and pay cancellation fees. About that email list: It's unusual in a written opinion for a court to signal so overtly that, though it thinks there's no legal basis for some behavior, it nonetheless expects a party to engage in that behavior, but that seems to be what happened here.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

According to a fresh eWeek report:

By rejecting the appeal, the human rights court paved the way for McKinnon to come to the United States, where he faces up to 70 years if convicted. He is accused of hacking his way into computers at the Pentagon, NASA and the U.S. Army and Navy in 2001 and 2002, causing a reported $700,000 worth of damage.

Attorney Karen Todner, who is representing McKinnon, said her client would now appeal to Home Secretary Jacqui Smith to try to persuade her to reconsider an earlier decision and prosecute her client in the United Kingdom.

"Failing that he will be extradited...probably within the next three weeks," Todner added.

She said her client had recently been diagnosed with Asperger's Syndrome and hoped Smith would take this information into account. McKinnon told Reuters in 2006 he was just a computer nerd who wanted to find out whether aliens really existed and became obsessed with trawling large military networks for proof.

His lawyers have argued that sending him to the United States would breach his human rights because he could be prosecuted on account of his nationality or political opinions.

Not surprisingly, McKinnon has a lot of support among technical people:

Graham Cluley, senior technology consultant with Sophos, said a poll of IT professionals conducted in 2006 found that more than half were against extraditing him, mostly because they did not feel he had malicious intent.

There is a feeling in much of the IT community that McKinnon is being treated as a scapegoat by the U.S. authorities, that because he was arrested shortly after 9/11 that the U.S. agencies felt that they had to send out a strong message that hacking was not going to be tolerated."

(Photo by AP/Lefteris Pitarakis)

• Blogging - keep a company blog updated with latest news and status updates
• Get Satisfaction - a place for your customers to express their opinion and help you identify bugs. A Suggestion Box 2.0
• Easy access to contact information - let customers know that they can always call, email or mail in their issues, never hide your number
• Respond to complains quickly - never go silent.
• Never deny the obvious - its much better PR to admit your mistakes than to actively deny they exist.
  

Read on as I touch on some of the points above.

Blogging - The Ultimate Tool to Connect With Your Users

A blog serves a million functions for your company from keeping the customers updated with the latest and greatest happenings to custom feeds for journalists, to engaging the conversation with your users. First thing to remember is to always keep posting, because a "dead" blog is sometimes indicative of the company losing interest in updating the users. If you suffer from planned or unplanned outages of your service - never host your blog on the same server farm as your current website. A lot of times if the site is down, the blog is the first place people look for an update and if you host your blog on the same server as your site which happens to be down, your blog will be down as well.

To start a blog you can take a look at one of our tutorials in the Video Tutorials section. There are two types of blogging platforms out there: a hosted solution such as WordPress.com, Typepad or Blogger and host-it-yourself packages. If you would rather have complete control over your content and not rely on anyone else for that service, you should check out WordPress.org, Movable Type or even our own blogging platform, Post Zinger (which, by the way, is a clear winner in blogging/podcasting space). Some hosting providers such as BlueHost (disclosure: it's our affiliate link) allow you to very quickly install these platforms.

In case you are still not sold on having a blog, keep in mind that they all come with some type of RSS Feed which helps high traffic blog authors to keep tabs on you, and when they see a new interesting feature or a sour customer turned happy they will cover, it bringing the ever important positive coverage of your service. Your blog also allows you to keep the conversation on the site, where you can control it, and while deleting comments and doing weird things will quickly get you very bad rep, you at least have a chance to respond quickly to issues.

If you think you need to be a technical person, that's not true, there are a ton of tutorials out there and it's generally a very low barrier of entry to get started. Pretty much anyone can get their own blog in a matter of minutes and have it customized with your website's look and feel in a matter of days, if not hours. There are always people that can set it for you, adding the benefit of their knowledge in the area.

Got Satisfaction?

Get Satisfaction is an up and coming social media feedback site. A lot of start ups use it as a de facto destination for getting positive and negative feedback about their services. It can be used as a tool to report bugs, suggest new features or complain about your product's usability. It is extremely useful as a feedback tool because the people who write are usually very passionate about your products. I have seen people write great suggestions, awesome bug reports and generally very articulate reviews. It can backfire however - if the company isn't responsive or has terrible customer service through general channels, it will have issues appealing to the social crowd. Case in point: Comcast. They try, they really do, and in 4 years of having the service I personally had no issues, no problems with customer service, always responsive, always helpful. Their corporate image, however, has suffered, from the lies about filtering, to terrible overcharging and deceitful pricing models, they leave a foul taste in customers' mouths. Also, someone over there really needs to fix their dot com site, probably eliminate it all together.

Setting up Satisfaction is pretty straight forward, first you create a company if it does not yet exist, then you claim it through ether email or phone confirmation. It takes a few days but once you are up and running, it is very simple to manage your company and products, add additional reps and moderate the conversations.

Denial is Not An Answer - Do Not Try to Fool Customers

If you have a problem with your service - be it an unfairly treated customer, a site that is constantly down, or shipping delays on a product launch - acknowledge them, do not let complaining customers escalate it and attract negative attention. People enjoy ganging up businesses to stand up for the little guy, be it vocal (through Internet or otherwise) or action driven protest (by unsubscribing, switching services, bad mouthing, etc). Blogs like The Consumerist enjoy writing about these incidents and sometimes whole communities dedicated to complaining spring up in protest. Timing is also everything, and in 9 out of 10 times you will have to make a public response to a lot of these complains, so it's better to be proactive and responsive before you generate enough bad press to fill a wall. Responding quickly and honestly is the key. This is where Brand Monitoring comes into play, where you are able to notice these incidents quickly, before they manifest themselves into PR disasters. From Twitter to Google Blog Search, companies that pay attention are the ones that end up benefiting from "Happy Customer" stories and positive word of mouth marketing.

Finally, have an easy way to contact you company, a number on every page or at least a clear link to the contact page, responsive service centers and acknowledging emails will go a long way. Zappos has their customer number on every page, they respond to emails extremely quickly and show care and compassion - clearly the reason for being so successful in online shoe selling business.

Try some of these out or, if you already use these methods successfully, let us know in the comments how they are working out for you!

If It's on Super Wall, It May As Well Be Public Record

What You Say Online is Not Private

So What's a Social Networker To Do?